Legal Ease, Aug. 4

The unexpected duty of the Good Samaritan

JAMES MORTON

A dreadful case out of Florida made me think of an unexpected legal principle—the duty and liability of a Good Samaritan.

In the Florida case, some teenagers on a beach saw a man drowning and not only did they not try to help, but they videotaped the drowning and made fun of the man as he died; a horrible and wicked thing.

But not criminal or even illegal.

There is, generally, no legal duty to help someone in trouble and so you can lawfully watch someone drown and take no steps to help them. A bystander is allowed to just watch and do nothing to help.

Now there are exceptions to this harsh rule—there are people you have a duty to protect. If you see, for example, your child in trouble you have a legal duty to rescue your child.

Of course, you cannot take steps to block a rescue—if the teenagers in Florida had held back someone who was going to dive in and save the man, they might well be charged with homicide.

The idea of a Good Samaritan comes, of course, from the Bible. In a parable, Jesus explained we have a moral duty to help our neighbours who are in trouble whether or not they are of the same background as ourselves.

We are all human and as such must try to help those who we can help just out of our common humanity. You do have a duty to try to rescue someone who has fallen through the ice—it may not be a legal obligation, but it is a moral duty nevertheless.

Jesus was right. If you see someone drowning you have a moral duty to try to save them if you can.

Of course, sometimes a rescue fails or even makes things worse—a botched rescue can lead to two or more people dying. (There is a memorial in Ottawa to a man who died trying to save a woman who fell into the Ottawa river. The woman survived!).

The Good Samaritan doctrine says if you try to help someone and act in good faith, but something goes wrong you cannot be sued for damages. The legal protection is intended to reduce bystanders’ hesitation to assist, for fear of being sued for unintentional injury or wrongful death.

You are not legally obliged to try to help, but if you do you have some legal protection. Many parts of Canada have a statute giving such protection—Nunavut does not have a formal Good Samaritan law, but the principle likely would be applied by a judge.

All that said, when faced with an emergency, people seldom stop to consult a lawyer as to their legal risks. In truth, the Good Samaritan principle is acted on in hindsight.

On the (fortunately) rare occasions where I have faced someone right after a car crash or drowning in a river I have acted without really thinking about what comes after the rescue. That’s probably the best idea for everyone.

James Morton is a lawyer practicing in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.